These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
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23-Communicating with an Adversary - Miscellaneous

67-Lawyers Acting as Guardians Ad Litem"

77-Communicating with an Individual Adversary

A minor child's guardian ad litem acts as a lawyer when assisting the child, and therefore must consent to ex parte communications with the child by a lawyer representing a parent or guardian. Lawyers serving as guardians ad litem are "subject to the applicable Rules of Professional Conduct governing lawyers unless those ethical obligations are inconsistent with the lawyer's obligations or duties" as a guardian ad litem, so guardians ad litem likewise may not communicate ex parte with represented parent or guardians without their lawyers' consent. Many courts' form orders appointing lawyers as guardian ad litem indicate that they shall have access to parties to any proceeding, but such orders do not allow such lawyers' reliance on the "authorized by law" exception to the general prohibition on ex parte communications. Courts may specifically authorize guardians ad litem to communicate ex parte with parents or guardians. Prosecutors or local government lawyers representing governmental entities may not communicate ex parte with a child represented by a guardian ad litem, and may not "use a social worker, police officer, or other investigator as an intermediary in civil matters" to circumvent Rule 4.2. In such a civil setting, government lawyers do not violate Rule 4.2 "merely by requesting a social worker or investigator to communicate with a represented person" entitled by law to engage in such communications, and may "advise generally what information the lawyer seeks." However, such government lawyers "may not 'mastermind' or 'script' the interview or dictate the content of the communication," because such conduct would violate Rule 8.4(a) by "circumventing Rule 4.2 through the actions of another." The "law enforcement" exception to the ex parte prohibition applies to "investigative contacts related to possible criminal law violations, which means that government lawyers in that criminal setting may "instruct or direct" investigators or agents to communicate ex parte with children represented by guardians ad litem, and "may also give advice regarding the content of the communication with a represented person."

Copyright 2000, Thomas E. Spahn